Federal Executive Power

Treaty Power

Treaties are agreements between the US and a foreign country that are negotiated by the President and ratified by 2/3 if the Senate

Treaty conflicts with other laws

Treaties prevail over conflicting state laws. If a treaty conflicts with a federal statute, the one adapted last in time controls. If a treaty conflicts with the Constitution it is invalid

Executive Agreements

An executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign country. Can be used for any purpose.

Executive Agreements Conflicting Laws

Executive Agreements prevail over conflicting state laws but never prevail over conflicting federal laws or the Constitution

Foreign Relations, Generally

The President has paramount power to represent the US in day-to-day foreign relations

Recognition Power

The president has the exclusive power to recognize foreign states and what is included in a foreign state. Notably, Congress was held to not have the power to require the Secretary of State’s office to designate a person’s birthplace as Israel at a time when the Executive Branch position was that no country had sovereignty over Jerusalem

Immigration Policy

The President has broad discretion in determining whether to admit individuals to the US

War

The President does not have the power to declare war but is the nation’s commander in chief. The President has the power to act militarily in actual hostilities against the US without a Congressional declaration of war to protect American lives and property. However, Congress has the power to enact a military appropriation that effectively limits the President.

Appointment Power

The President appoints ambassadors, federal judges, and officer of the US with the advice and consent of the Senate. Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts but not itself

Recess Appointments

The President may not make recess appointments, which don’t require Senate approval, during intrasession recesses that are less than 10 days

Removal power, generally

Unless removal is limited by statute, the President may fire any executive branch officer. Congress may only limit removal of executive officers if the office involved is one where independence from the President is desirable. However, Congress can only limit firing to removals for good cause. Congress also cannot limit the President’s authority to remove the head of an independent agency if that person is sole director and exercises substantial discretion

Impeachment

The President, the VP, federal judges, and officers of the US can be impeached by the House and convicted by the Senate, and thus removed from office, for treason, bribery, or for high crimes or misdemeanors. Conviction requires a 2/3 vote in the Senate

Executive Immunity

The President has absolute immunity to civil suits for money damages for any actions while in office, but this does not extend to actions that occurred prior to taking office. The President effectively has absolute criminal immunity for actions within the scope of the office

Executive Privilege

The President has executive privilege over presidential papers and conversations (the right to keep that information confidential) Privilege must yield to other important government interests, such as a need for information in criminal trials

Limits on protection from State and Congressional Subpoenas

The President has no immunity to keep the President’s financial records from being subpoenaed by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests

Pardons

The President has the unrestricted power to pardon those accused or convicted of federal crimes

Veto Power

The President may veto an act of Congress. This veto may be overridden by a two-thirds vote in each house

Power as Chief Executive and the Take Care Clause

(1) if the President acts with the express or implied authority of Congress, the President’s authority is at its zenith and the actions are likely valid; (2) if the President acts where Congress is silent, the action will be upheld unless it usurps the balance of powers of the branches or prevents another branch from carrying out its tasks; and (3) if the President acts against the express will of Congress, the President’s power is at its nadir and the action is invalid unless Congress was acting without power

No Power to Impound

The President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. Some authorities base this in the Take Care Clause.